CRA No.

786 of 2012 DB

IN THE HIGH COURT OF MADHYA PRADESH

AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)
CRIMINAL APPEAL No.786 of 2012

BETWEEN:-
RAMESH S/O BAPU GIRI, AGED- 40 YEARS
OCCUPATION SERVICE 4/97, AVAS NAGAR,
1.
DEWAS(MADHYA PRADESH),

.....APPELLANT
(SHRI C.L. YADAV, LEARNED SENIOR COUNSEL WITH SHRI SHYAM
SINGH THAKUR, LEARNED COUNSEL FOR THE APPELLANT)

AND

THE STATE OF MADHYA PRADESH

THROUGH POLICE STATION BNP DEWAS,
DISTRICT DEWAS(MADHYA PRADESH)
.....RESPONDENT/STATE
SHRI MUKESH KUMAWAT, LEARNED GOVT. ADVOCATE FOR THE
RESPONDENT/STATE)\

Reserved on 14.12.2022
Pronounced on 21.12.2022

This appeal having been heard and reserved for judgment, coming

on for pronouncement this day, JUSTICE SHRI RAJENDRA KUMAR

(VERMA) pronounced the following:

 CRA No.786 of 2012 DB

************************************************************

JUDGEMENT

1. This criminal appeal under Section 374 of Cr.P.C. is preferred

being aggrieved by the judgment and order dated 13/04/2012, passed by

the learned Sessions Judge, Dewas in S.T. No.253/11 whereby the

appellant has been found guilty for the offence punishable under Section

302 of IPC and sentenced to Life Imprisonment.

2. As per prosecution story, the deceased Hemlata was married with

appellant 20 years prior to the incident. Appellant ill treated his wife after

marriage. Mother of the deceased Koshaliyabai had engaged the appellant

in employment of Tata Tea Company at village-Manglia. But three months

before the incident, the appellant discontinued his job and his wife

(deceased) maintained family by doing some labour work. 5-6 days before

the incident, there was a dispute between the husband(appellant) and wife

(deceased), after which deceased came to her parental house and three days

prior to the incident, the appellant came and brought deceased back to his

home. On 13.06.2011 at about 11.40 p.m. appellant Ramesh came to the

police station with knife in his hand wearing blood stained clothes and
 CRA No.786 of 2012 DB

stated that he murdered his wife due to her bad character, the said

information was recorded by SHO- Pratap Singh Ranawat (PW-9) at

Rojnamcha Sanha No.796 (Ex.P-16C) SHO Ranawat went to the spot and

found dead body of Hemlata at the house of appellant. Subsequently

Dehati Nalishi Ex.P-13 was scribed and Balram Vyas, HC (PW-6) posted

at P.S.- Bank Note Press, District-Dewas registered F.I.R. Ex.P-10, crime

number 446/2011 under Section 302 of IPC, against the appellant.

3. During investigation, the appellant was arrested, weapon used

in the crime and blood stained clothes were seized from appellant as per

seizure memo Ex.P-6. Spot Map was prepared. Autopsy has been done.

Clothes of deceased and bed-sheet etc. from the spot were also seized and

the seized articles were sent to FSL examination. and upon completion of

the investigation, the charge-sheet was filed under Section 302 of IPC and

under Section 25 of Arms Act, 1959. Thereafter, the case was committed to

session court, Dewas and the trial court framed charges against appellant

under Section 302 of IPC, who denied the charges and pleaded for trial.

4. Appellant took defense that some persons came to his house

and committed robbery and assaulted his wife and himself by knife.

Appellant has examined himself as DW1. But appellant stated nothing in

examination of accused recorded under Section 313 of Cr.P.C. regarding

 CRA No.786 of 2012 DB

above stated version. After evaluating the evidence that came on record the

trial court found the appellant guilty and convicted and sentenced as

mentioned hereinabove.

5. Being aggrieved by the said judgment of conviction and

sentence, the appellant has filed this criminal appeal before this Court.

6. Learned counsel for the appellant submits that the appellant has

been wrongly convicted and sentenced for the offence and the conviction is

bad in law. The appellant has been falsely implicated in the case. He has

nothing to do with the alleged crime. The learned trial court has erred in

not appreciating the evidence in right prospect. There is no eye witness of

the incident and the case is based on circumstantial evidence and complete

chain of circumstances has not been proved by the prosecution. The

confessional statement of appellant before the police station is not

admissible in evidence because that statement was given to the police and

that confessional statement is hit by Section 25 and 26 of The Evidence

Act, 1872. The trial court has committed an error in believing the evidence

of prosecution witness despite there being many omissions and

contradictions in their statements. Counsel for the appellant also submitted

that the appellant is in custody from the date of arrest i.e. 14.06.2011 and

thereby he is in custody for more than 11 years. Hence, prays that criminal
 CRA No.786 of 2012 DB

appeal may be allowed.

7. Per contra, learned counsel for the respondent/State opposes the

prayer and submits that the trial court has discussed at length the provision

of Sections 25, 26 and 27 of the Indian Evidence Act. The Trial court has

passed the judgment after proper appreciation of evidence came on record

and the trial court has rightly held the appellant guilty and prays for

rejection of criminal appeal.

8. We have heard both the counsel for the parties and perused the

record.

9. No doubt, the case in hand, is based on circumstantial evidence

and what should be the standard of circumstantial evidence on this point

there is a landmark judgment of the Hon'ble Supreme Court Sharad

Birdichand Sarda Vs. State of Maharashtra reported in AIR 1984 SC

1622 wherein the learned Apex Court has held that the following

conditions must be fulfilled before a case against an accused based on

circumstantial evidence can be said to be fully established :-

1. The circumstances from which the conclusion of guilt is to

be drawn should be fully established; [163D]
2. The facts so established should be consistent with the
hypothesis of guilt and the accused, that is to say, they
should not be explainable on any other hypothesis except
that the accused is guilty; [163G]
 CRA No.786 of 2012 DB

3. The circumstances should be of a conclusive nature and

tendency;[163G]
4. They should exclude every possible hypothesis except the
one to be proved; and [163H]
5. There must be a chain of evidence so complete as not to
leave any reasonable ground for the conclusion consistent
with the innocence of the accused and must show that in all
human probability the act must have been done by
the accused.
10. Before adverting to the arguments advanced by the learned

Counsel we shall at the threshold point out that in the present case, there is

no direct evidence to connect the accused with the offence in question and

the prosecution rests its case solely on circumstantial evidence. The legal

position as to how such matter should be examined has been expounded in

the case of Padala Veera Reddy Vs. State of Andhra Pradesh reported in

1991 SCC (Cri) 407. The Apex Court has held that this Court in a series of

decisions has consistently held that when a case rests upon circumstantial

evidence such evidence must satisfy the following tests :

(1) the circumstances from which an inference of guilt is

sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime
 CRA No.786 of 2012 DB

was committed by the accused and none else; and (4) the
circumstantial evidence in order to sustain conviction
must be complete and incapable of explanation of any
other hypothesis than that of the guilt of the accused and
such evidence should not only be consistent with the guilt
of the accused but should be inconsistent with his
innocence. (See Gambhir v. State of Maharashtra ).
11. The learned trial Court found that the prosecution has proved

the circumstance against the appellant from which the conclusion of guilt

is to be drawn s under :

(i) the appellant had motive.

(ii)blood stained knife has been recovered from the appellant.

(iii)blood stained clothes were seized from the appellant;

(iv)the appellant and deceased were alone at the time of incident in

the house;

(v)the appellant has failed to explain how is wife was dead.

12. The learned trial Court have categorically discussed the

provisions of Sections 25, 26 and 27 of the Indian Evidence Act in Para

-16, 17, 18, 19 and 20 of the impugned judgment. The learned trial Court

rightly found that the confession before police is not admissible under

Sections 25 and 26 of the Indian Evidence Act.

13. Learned counsel for the appellant has relied on the judgment of
 CRA No.786 of 2012 DB

Supreme Court in the case of Aghnoo Nagesia Vs. State of Bihar [AIR

1996 SC, 119. In this case, the Apex Court has held that :

"a statement which contains self-exculpatory matter cannot

amount to a confession, if the exculpatory statement is of
some fact which, if true, would negative the offence alleged
to be confessed. If an admission of an accused is to be used
against him, the whole of it should be tendered in evidence,
and if part of the admission is exculpatory and part
inculpatory, the prosecution is not at liberty to use in
evidence the inculpatory part only."
14. The learned trial Court, after detailed discussion considering

the case of Aghnoo Nagesia(Supra), Khatri Hemraj Amulakh Vs. State

of Gujarat, AIR 1972 SC 922 and Bandlamuddi Atchuta Ramaiah Vs.

State of Andhra Pradesh[AIR 1997 SC 496], has rightly arrived at the

conclusion in para - 22 of the impugned judgment that the only part of the

statement of Kantilal Head Constable(PW7) relating to that appellant came

at the Police Station carrying a blood stained knife and he was wearing

blood stained clothes and also sustained a wound on his left hand, is

admissible in evidence. These aspects are only relating to and could be

taken into consideration against the accused/appellant. Similar is the

position with the statement of SHO Pratapsingh Ranawat(PW9). The

learned trial Court has rightly held in Para - 27 of the impugned judgment

that confession of appellant or any self-implicating circumstance would

 CRA No.786 of 2012 DB

not be taken into consideration and are negligible and the learned trial

Court found that the defence has not challenged the circumstance that the

police as well as Ajay Mansharam(PW3) found the dead body of wife of

the appellant/accused in the house of appellant in the midnight.

15. It is a settled legal position that the facts need not be self-

probatory and the word as contemplated in Section 27 of the Evidence

Act is not limited to actual physical material object.

The discovery

of fact arises by reason of the fact that the information given by the

accused exhibited the knowledge or the mental awareness of the

informant as to its existence at a particular place. It includes a

discovery of an object, the place from which it is produced and the

knowledge of the accused as to its existence.

16. Counsel for the appellant also submitted that as alleged the

knife knife was seized at '1:20 a.m.' and the accused reached at the Police

Station at '11:40' p.m with knife. The prosecution has failed to prove that

between 11:40 p.m. and 01:30 a.m., in whose custody was the said knife. It

is also submitted that the prosecution story becomes doubtful that appellant

reached at the Police Station with open knife.

17. On perusal of the impugned judgment, it is evident that the

learned trial Court elaborately discussed this issue in Para - 35, 36 and 37
 CRA No.786 of 2012 DB

of the impugned judgment and found that there is defect on the part of

investigation, but it is settled law that if offence is otherwise proved,

benefit of doubt could not be given to the accused.

18. In the case of Ambika Prasad Vs. State (Delhi

Administration) reported in (2000) 2 SCC 646 it was held that :

"in a case for defective investigation, it would not be

proper to acquit the accused. If the case is otherwise
established conclusively. A criminal trial is meant for
doing justice to the accused, a victim and the society, so
that the law and order is maintained. A judge does not
preside over a criminal trial, merely to see that no
innocent man is punished but, a Judge also presides to see
that a guilty man does not escape.(See also RamRam
Das Vs. State of M.P. 2002(3) M.P.L.J. 153)."
19. It is pertinent to mention here that in the examination of

accused under Section 313 of Cr.P.C., the appellant had not stated that

there was a loot/robbery and some person assaulted him and his wife

Hemlata and they sustained injury. The accused(DW1) in chief-

examination has not stated regarding loot. It is pertinent to mention here

that as per Naksha Panchayat Nama(inquest memo), there was

Mangalsutra and anklet on the body of the deceased and if there was

robbery, the ornaments should not be present on the body of the deceased.

20. The learned trial Court found that the appellant has failed to
 CRA No.786 of 2012 DB

explain how his wife was dead. The learned trial Court has rightly relied

on the case of Rajkumar Prasad Tamrakar Vs. State of Bihar (2007) 3

SCC (Cri.) 716 wherein the the Hon'ble Apex Court has held as under :-

"when at the time of the occurrence only the wife and the
husband were present in the house and when there was
homicidal death and there was no possibility of entrance of
anybody else in the house and causing of injury to the wife by
another person, the burden lies on the accused husband to
explain as to how his wife died."

21. The learned trial Court also relied on the judgment of Trimukh

Maroti Kirak Vs. State of Maharashtra (2006) 10 SCC 681 wherein the

Hon'ble Apex Court explicated that if an offences takes place inside the

privacy of a a house where the accused have all the opportunity to plan and

commit the offence at the time and in circumstances of their choice, it will

be extremely difficult for the prosecution to lead evidence to establish the

guilt of the accused if the strict principle of circumstantial evidence, is

insisted upon. The Court expounded thus :

"14. If an offence takes place inside the privacy of a house

and in such circumstances where the assailants
have all the opportunity to plan and commit the offence
at the time and in circumstances of their choice, it will be
extremely difficult for the prosecution to lead
evidence to establish the guilt of the accused if
 CRA No.786 of 2012 DB

the strict principle of circumstantial evidence, as

noticed above, is insisted upon by the Courts. A Judge
does not preside over a criminal trial merely to
see that no innocent man is punished. A Judge also
presides to see that a guilty man does not escape. Both are
public duties. (See Stirland v. Director of Public
Prosecution 11 quoted with approval by Arijit Pasayat,
J. in State of Punjab v. Karnail Singh12). The law does not
enjoin a duty on the prosecution to lead evidence of
such character which is almost impossible to be led or
at any rate extremely difficult to be led. The duty on the
prosecution is to lead such evidence which it is
capable of leading, having regard to the facts and
circumstances of the case. Here it is necessary to keep in
mind Section 106 of the Evidence Act which says that
when any fact is especially within the knowledge
of any person, the burden of proving that fact is
upon him. Illustration (b) appended to this section throws
some light on the content and scope of this provision and
it reads:

(b) A is charged with traveling on a railway without

ticket. The burden of proving that he had a
ticket is on him.
15. Where an offence like murder is committed in secrecy
inside a house, the initial burden to establish
the case would undoubtedly be upon the prosecution, but
the nature and amount of evidence to be led by
it to establish the charge cannot be of the same degree
as is required in other cases of circumstantial evidence.
The burden would be of a comparatively lighter character.
In view of Section 106 of the Evidence Act there will be a
corresponding burden on the inmates of the house to give
a cogent explanation as to how the crime was
 CRA No.786 of 2012 DB

committed. The inmates of the house cannot get

away by simply keeping quiet and offering no
explanation on the supposed premise that the
burden to establish its case lies entirely upon the
prosecution and there is no duty at all on an
accused to offer any explanation.

21. In a case based on circumstantial evidence

where no eye witness account is available, there is another
principle of law which must be kept in mind. The
principle is that when an incriminating circumstance is put to
the accused and the said accused either offers no explanation
or offers an explanation which is found to be untrue, then the
same becomes an additional link in the chain of
circumstances to make it complete. This view has
been taken in a catena of decisions of this Court. [See
State of Tamil Nadu v. Rajendran13 (SCC para 6); State of
U.P. v. Dr. Ravindra Prakash Mittal14 (SCC para 39 : AIR
para 40); State of Maharashtra v. Suresh15 (SCC para 27);
Ganesh Lal v. State of Rajasthan16 (SCC para 15) and
Gulab Chand v. State of M.P.17 (SCC para 4).]"

22. In Nika Ram Vs. State of H.P. [(1972) 2 SCC 80 it was

observed that :-

"the fact that the accused alone was with his wife in the
house when she was murdered there with 'khokhri' and the
fact that the relations of the accused with her were
strained would, in the absence of any cogent
explanation by him, point to his guilt. In Ganeshlal v. State
of Maharashtra19 the appellant was prosecuted for the
murder of his wife which took place inside his house. It was
observed that when the death had occurred in his custody,
 CRA No.786 of 2012 DB

the appellant is under an obligation to give a plausible

explanation for the cause of her death in his statement under
Section 313 Cr.P.C. "The mere denial of the prosecution case
coupled with absence of any explanation were held to
be inconsistent with the innocence of the accused,
but consistent with the hypothesis that the appellant
is a prime accused in the commission of murder of
his wife."

23. In the case of Shambhunath Mehra Vs. State of Ajmer

reported in AIR 1956(SC) 404, the Apex Court has held as follows :

11. This lays down the general rule that in a criminal case
the burden of proof is on the prosecution and section 106 is
certainly not intended to relieve it of that duty. On the
contrary, it is designed to meet certain exceptional cases in
which it would be impossible, or at any rate
disproportionately difficult, for the prosecution to establish
facts which are "especially" within the knowledge of the
accused and which he could prove without difficulty or
inconvenience. The word "especially" stresses that. It means
facts that are preeminently or exceptionally within his
knowledge.

24. As per FSL report(Ex-P/9), human blood was found on the

clothes of the appellant and also on the knife which was seized/recovered

from him. It is true that the blood group of the blood which was found on

the knife was not ascertained, but only on this point the material evidence

of the case could not be brushed aside. The learned trial Court discussed
 CRA No.786 of 2012 DB

this point elaborately in para - 39 and further relied on the case of Molai

Vs. State of M.P.[AIR 2000(SC) 177 and found that human blood on the

knife is an incriminating circumstance against the accused /appellant. In

the case of Molai Vs. State of M.P.(Supra) the Hon'ble Apex Court has

held that:

"As far as the knife recovered at the instance of Molai (A-

2), it did have the human blood but the blood group could
not be determined. These incriminating articles connect
the accused with the crime in question, Mr. Shukla, the
learned senior counsel, however, urged that it would be
unsafe to connect the said knife with the crime in question
and attribute the use of the same by the accused persons
in me absence of determination of the blood group. This
argument does not appeal to us because the FSL's report
has clearly certified that the blood found on the knife was
human origin.:"
25. This question fell for consideration in State of Rajasthan v.

Teja Ram and Ors,, [1999] 3 SCC 507, wherein the Apex Court held

that :

"It would be an incriminating circumstance if blood on the

weapon was found to be of human origin."
26. In the present case, it was proved by the prosecution that the

appellant reached the Police Station with blood stained knife and he was

wearing blood stained clothes. The dead body of the appellant's wife was
 CRA No.786 of 2012 DB

lying in the house of the appellant and at the time of incident only

appellant and deceased were alone in the house. The motive also proved by

the prosecution and the appellant failed to explain as to how his wife died.

The Human blood stains were found on the knife seized/recovered from

the appellant. It is also very surprising that the appellant had three sons,

but appellant did not state where were his children at the time of the

alleged incident. The learned trial Court after detailed and elaborate

discussion found that the chain of circumstances has been proved by the

prosecution and the chain of evidence is so complete. The fact that the

appellant had reached the police station with blood stained clothes and

knife and informed the police that dead body of his body was lying in his

house, speaks of his conduct as the same is material evidence to establish

his conduct.

27. In the case of Prakash Chand Vs. State (UT of Delhi)

reported in ((1979) 3 SCC 90, the Hon'ble Apex Court has held as under :-

8. ... "There is a clear distinction between The conduct of

a person against whom an offence is alleged, which is
admissible under Section 8 of the Evidence Act, if such
conduct is influenced by any fact in issue or relevant fact
and the statement made to a Police officer in the course
of an investigating which is hit by Section 162 Criminal
Procedure Code. What is excluded by Section
 CRA No.786 of 2012 DB

162 Criminal Procedure Code is the statement made to a

Police officer in the course of investigation and not the
evidence relating to the conduct of an accused person
(not amounting to a statement) when confronted or
questioned by a Police officer during the course of an
investigation. For example, the evidence of the
circumstance, simpliciter, that an accused person led a
Police officer and pointed out the place where stolen
articles or weapons which might have been used in the
commission of the offence were found hidden, would be
admissible as conduct, under Section 8 of the Evidence
Act, irrespective of whether any statement by the accused
contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 of the Evidence
Act."
28. In the case of A.N. Venkatesh v. State of Karnataka reported

in (2005) 7 SCC 714, it has been ruled by the Apex Court that :

"9. By virtue of Section 8 of the Evidence Act, the conduct of

the accused person is relevant, if such conduct influences or
is influenced by any fact in issue or relevant fact. The
evidence of the circumstance, simplicitor, that the accused
pointed out to the police officer, the place where the dead
body of the kidnapped boy was found and on their pointing
out the body was exhumed, would be admissible as conduct
under Section 8 irrespective of the fact whether the statement
made by the accused contemporaneously with or antecedent
to such conduct falls within the purview of Section 27 or not
as held by this Court in Prakash Chand Vs. State (AIR 1979
SC 400). Even if we hold that the disclosure statement made
by the accused appellants(Ex. P14 and P15) is not
admissible under Section 27 of the Evidence Act, still it is
relevant under Section 8. The evidence of the investigating
 CRA No.786 of 2012 DB

officer and PWs 1, 2, 7 and PW4 the spot mazhar witness

that the accused had taken them to the spot and pointed out
the place where the dead body was buried, is an admissible
piece of evidence under Section 8 as the conduct of the
accused. Presence of A-1 and A-2 at a place where ransom
demand was to be fulfilled and their action of fleeing on
spotting the police party is a relevant circumstance and are
admissible under Section 8 of the Evidence Act."

29. In the case of Mulakh Raj Vs. Satish Kumar reported in

(1992) 3 SCC 43, the Hon'ble Apex Court succinctly restated the legal

position in Para - 4 as under :

"4. ......Undoubtedly this case hinges upon circumstantial

evidence. It is trite to reiterate that in a case founded on
circumstantial evidence, the prosecution must prove all the
circumstances connecting unbroken chain of links leading
to only one inference that the accused committed the
crime. If any other reasonable hypothesis of the innocence
of the accused can be inferred from the proved
circumstances, the accused would be entitled to the
benefit. What is required is not the quantitative but
qualitative, reliable and probable circumstances to
complete the chain connecting the accused with the crime.
If the conduct of the accused in relation to the crime
comes into question the previous and subsequent conduct
are also relevant facts. Therefore, the absence of ordinary
course of conduct of the accused and human probabilities
of the case also would be relevant. The court must weigh
the evidence of the cumulative effect of the circumstances
and if it reaches the conclusion that the accused
committed the crime, the charge must be held proved and
 CRA No.786 of 2012 DB

the conviction and sentence would follow."

30. In view of the above discussions, after considering the entire

evidence and taking of proved circumstances into account, the prosecution

has succeeded to prove the guilt of the appellant/accused under Section

302 of IPC. The learned trial Court was appropriate in recording finding

of guilt against the appellant. Hence, the conviction and sentence of the

appellant passed by the learned trial Court stands maintained/confirmed.

31. The criminal appeal, accordingly, stands dismissed.

32. Record of the trial Court be send back to the concerned trial

Court.

(Vijay kumar shukla) (Rajendra Kumar (Verma))

Judge Judge

pn

PREETHA
Digitally signed by PREETHA NAIR
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya
Pradesh,
2.5.4.20=5431da3716f911ecd1cb3fc6dc91ea2cacec60259cb24
1b9ad42416f404bb303,

NAIR
pseudonym=BEA9A029360DBE02FDC86E8557A519B70B35E1A
7,
serialNumber=0EC5BE08895BA17A6074239F753A38DE8188C5
E65085178B87CD8C85BA5B87CC, cn=PREETHA NAIR
Date: 2022.12.21 18:18:30 +05'30'